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2011 DIGILAW 296 (GAU)

Subodh Sarkar v. State of Assam

2011-04-02

A.K.GOSWAMI, MADAN B.LOKUR

body2011
JUDGMENT Madan B. Lokur, J. 1. This appeal is directed against the judgment and sentence dated 29-9-2003 passed by the learned Sessions Judge, Morigaon in Sessions Case No. 24/2003 (GR Case No. 6/02). 2. The origin of this case lies in the First Information Report (FIR) lodged on 2-1-2002 by Nagen Pal, brother of the deceased. In his report, Nagen Das stated that on 1-1-2002 his brother Niranjan Pal had gone to Gegera along with some others, that is, Mantu Das, Habial Das, Subodh Sarkar and Dhanai Das for a picnic. Though the four friends of Niranjan Pal returned home the same evening, he did not come back. The next morning (on 2-1-2002) the informant came to know from some wood cutters that the dead body of Niranjan Pal was found in the Gegera forest. In the report given by him, Nagen Das stated that he suspected that Mantu Das, Habial Das, Subodh Sarkar and Dhanai Das had killed Niranjan Pal. 3. It is also stated in the FIR that the Village Defence Party (VDP) personnel had, in the meanwhile, apprehended the four suspects and handed them over to the Police Out Post. 4. On receipt of the FIR, the police began their investigations and ultimately filed a charge sheet accusing four persons aforementioned of having committed the murder of Niranjan Pal and of destroying evidence by throwing his dead body in the middle of the jungle without any intimation to his family. All the accused persons pleaded not guilty and the matter was set down for trial. 5. The prosecution examined as many as seven witnesses and the mother of Niranjan Pal appeared in the witness box as a Court Witness. 6. On the evidence on record, the learned Sessions Judge concluded that all the four accused had murdered Niranjan Pal and accordingly they were sentenced to undergo rigorous imprisonment for life. With regard to the offence of destruction of evidence under Section 201 read with Section 34of the IPC, the learned Sessions Judge found the accused not guilty. 7. We have gone through the entire material on record with the assistance of learned Counsel for the Appellants as well as the learned Public Prosecutor and are of the opinion that no clear case of conviction has been made out against the accused persons. 8. 7. We have gone through the entire material on record with the assistance of learned Counsel for the Appellants as well as the learned Public Prosecutor and are of the opinion that no clear case of conviction has been made out against the accused persons. 8. PW-1 Dr Romendra Kr Pathak is the doctor who had examined the dead body of Niranjan Pal, aged about 30 years. He found that the deceased had suffered some abrasions and a bruise and that the 11th and 12th ribs on the left side of his chest were fractured. The major injury suffered by the deceased was laceration with rupture of the anterior surface of the spleen and his death was due to haemorrhage and shock caused by the rupture. There is nothing on record from the evidence of this witness to show the approximate time of death of Niranjan Pal. 9. PW-2 Uddhav Ch Pal and PW-3 Subanta Pal are the cousins of the deceased. They are not eye witnesses to the alleged crime. They met Subodh Sarkar and Mantu Das on the evening of 1-1-2002 and learnt from them that Niranjan Pal had gone to the house of his friend to spend the night over there. It is only on the next day (on 2-1-2002) that they learnt that Niranjan Pal had died and that his body was discovered by two persons who had gone to the jungle to collect firewood. 10. According to PW-2 Uddhav Ch Pal when the news of the death of Niranjan Pal was received, the villagers and VDP personnel searched for Subodh Sarkar and Mantu Das and they were found in the house of Habial Das. The police was given this information and it appears that the accused persons were then apprehended. PW-2 Uddhav Das mentions that he had heard from Smti Tipdoi Pal (mother of Niranjan Pal) that he (Niranjan Pal) had gone for a picnic with the accused persons. He had no personal knowledge in this regard. The deposition of PW-3 Subanta Pal is more or less on the same lines as that of PW-2 Uddhav Das. 11. PW-4 Kalyan Dutta is a formal witness in the sense that he witnessed the inquest proceedings and therefore it is not necessary to deal with his evidence. 12. PW-5 Nagen Pal is the brother of the deceased Niranjan Pal and is the informant who lodged the FIR. 11. PW-4 Kalyan Dutta is a formal witness in the sense that he witnessed the inquest proceedings and therefore it is not necessary to deal with his evidence. 12. PW-5 Nagen Pal is the brother of the deceased Niranjan Pal and is the informant who lodged the FIR. He says that on 1-1-2002 at about 8 a.m. Subodh Sarkar came to his house along with Habial Das and Mantu Das. They took Niranjan Pal along with them and later when he asked his mother Tipdoi Pal she told him that Niranjan Pal had gone away for a picnic. Since Niranjan Pal did not return that evening, he went along with his mother to search for him. They met Mantu and Subodh Sarkar and were told that Niranjan Pal had decided to spend the night with a friend at Gegera. It is only the next day (on 2-1-2002) that he came to know that Niranjan Pal's body was discovered by some woodcutters of the neighbouring area. The VDP personnel were informed and the body of Niranjan Pal was located and the police were informed. 13. This witness further says that he went to the spot where the dead body was found and when the corpse of Niranjan Pal was brought, they saw Subodh Sarkar, Habial Das and Mantu Das. On being noticed they all went to Habial Das' house and closed the door. Since Dhanai @ Dhanti had also gone with all of them for the picnic, an attempt was made to locate him but he fled away. Later on the Shanti Committee of the area asked the mother of Dhanai Das @ Dhanti to produce him, which she did. 14. PW-6 Bishan Bordoloi was one of those who had seen the dead body of Niranjan Pal but it is not clear from his evidence whether he was a member of the VDP personnel or not. In any event this witness turned hostile and denied having made any statement before the police during the course of investigation. According to the prosecution, he stated during investigations that he had seen an altercation between Niranjan Pal on the one hand and Mantu Das, Habial Das, Dhanai Das @ Dhanti and Subodh Sarkar. 15. PW-7 Sachin Sarmah is the Investigating Officer and he confirms the broad facts of the case. According to the prosecution, he stated during investigations that he had seen an altercation between Niranjan Pal on the one hand and Mantu Das, Habial Das, Dhanai Das @ Dhanti and Subodh Sarkar. 15. PW-7 Sachin Sarmah is the Investigating Officer and he confirms the broad facts of the case. He says in his deposition that he had interrogated the accused persons and recorded their statements and all of them had admitted the guilt but he did not make any prayer for recording their confessional statement. He confirms that the dead body of Niranjan Pal was found in Gegera forest and, according to him, that is the place of occurrence of the alleged crime. 16. The mother of Niranjan Pal, that is, Tipdoi Pal appeared in the witness box as CW-1. She confirms that on 1-1-2002 Subodh Sarkar came to her house along with Mantu Das, Habial Das and Dhanai Das and that Niranjan Pal went along with them for a picnic. Since he did not return in the evening, she and Nagen Pal went to look for him when they met Subodh Sarkar and Mantu. They were informed that Niranjan Pal had met a friend and went away with him. It is only the next morning that she was informed that the dead body of Niranjan Pal was found in the jungle. With the help of the Mohila Samity, the police then apprehended Subodh Sarkar, Habial Das, Mantu Das and Dhanai Das. 17. The statement of all the accused persons was recorded under Section 313 of the Code of Criminal Procedure and they denied any involvement in the death of Niranjan Pal. 18. As is clear from the evidence placed on record, this is entirely a case based on the "last seen" theory propounded by the prosecution. Admittedly Niranjan Pal was last seen with the four accused persons, all of whom had gone for a picnic at Gegera. What happened over there is not very clear. There are two possibilities either Niranjan Pal went away with his friend or that some sort of a scuffle took place between Niranjan Pal and the accused. This scuffle resulted in a few abrasions and bruises on the person of Niranjan Pal, along with broken ribs and a ruptured spleen. It is the rupture of the spleen that caused his death. 19. This scuffle resulted in a few abrasions and bruises on the person of Niranjan Pal, along with broken ribs and a ruptured spleen. It is the rupture of the spleen that caused his death. 19. The Investigating Officer states in his evidence that PW-6 Bishan Bordoloi told him that a quarrel had taken place in Gegera between Niranjan Pal, Mantu Das, Subodh Sarkar and Dhanai Das and it is consequent to that quarrel that Niranjan Pal was assaulted. Bishan Bordoloi turned hostile in the witness box and denied the statement allegedly made by him to the Investigating Officer. Even otherwise, it is difficult to accept the theory put forward by the Investigating Officer that all the four accused persons assaulted Niranjan Pal. Considering the nature of injuries, it appears that Niranjan Pal could not have been assaulted by all the four accused persons. Most of the injuries, apart from the fracture of the ribs, are of a minor nature and it is possible to accept the view that a scuffle did take place and that during the scuffle, may be between Niranjan Pal and some others, the spleen of Niranjan Pal got ruptured. 20. As can be seen from the evidence on record, the case of the prosecution is based on circumstantial evidence and the "last seen" theory. 21. The Supreme Court has said in Babu v. State of Kerala (2010) 9 SCC 189 in paragraph 22 of the Report that in a case of circumstantial evidence the following factors need to be established: 22. In Krishnan v. State (2008) 15 SCC 430 this Court after considering a large number of its earlier judgments observed as follows: (SCC p.435, para 15) 15. ... In Krishnan v. State (2008) 15 SCC 430 this Court after considering a large number of its earlier judgments observed as follows: (SCC p.435, para 15) 15. ... This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the accused; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra (1982) 2 SCC 351 ) 22. There is no doubt that Niranjan Pal was last seen with the four accused persons and that they had all gone to Gegera. What transpired thereafter is not at all clear. On the applicability of the "last seen" theory, the Supreme Court had this to say in Om Prakash v. Ashwani Kumar Bassi (2010) 9 SCC 183 : 8. So far as the last seen aspect is concerned it is necessary to take note of two decisions of this Court. In State of U.P. v. Satish, (2005) 3 SCC 114 , it was noted as follows: (SCC p.123, para 22) 22. The last-seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses P Ws 3 and 5, in addition to the evidence of PW 2. 9. In Ramreddy Rajesh Khanna Reddy v. State of A.P. (2006) 10 SCC 172 it was noted as follows: (SCC p. 181, para 27) 27. The last-seen theory, furthermore, comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. Even in such a case the courts should look for some corroboration. As noted above, it does appear that Niranjan Pal had some scuffle - but whether it was with the accused persons or his other friend is not clear. The time of death, in such a case, is quite important but there is nothing on record to show the approximate time of death of Niranjan Pal. 23. On the basis of the circumstances available on record, we cannot presume that Niranjan Pal died during the day on 1-1-2002 after a scuffle with the accused persons or later in the evening in a scuffle with his other friend. The circumstantial evidence and the last seen theory do not unerringly lead to the conclusion that the accused were the only persons who could have caused the death of Niranjan Pal. We do not have even the approximate time of death of Niranjan Pal to hazard any guess. Therefore, the possibility that the other friend of Niranjan Pal may have caused his death (given the nature of injuries) cannot be ruled out. In any event, whoever had a scuffle with Niranjan Pal, they (or he) certainly did not intend it to be so violent as to cause his death. 24. Therefore, the possibility that the other friend of Niranjan Pal may have caused his death (given the nature of injuries) cannot be ruled out. In any event, whoever had a scuffle with Niranjan Pal, they (or he) certainly did not intend it to be so violent as to cause his death. 24. The fact that the accused acted somewhat suspiciously, as it appears from the evidence on record, does not lead to any conclusion that they had caused the death of Niranjan Pal. In Pannayar v. State of T.N., (2009) 9 SCC 152 the Supreme Court has noted that The absence of motive in a case which depended on circumstantial evidence is more favourable to the defence. On the facts of the present case, no motive is established or even suggested as to why the accused would want to cause the death of Niranjan Pal. This is a factor that must go in their favour. 25. Under the circumstances, we are inclined to give the benefit of doubt to the accused persons and hold that they did not murder Niranjan Pal. There is also no conclusive evidence that they and they alone could have caused his death. We may only observe that both the investigation and the prosecution of the case have been pretty casual leading to the present situation. 26. The appeal is allowed and the Appellants are acquitted of the alleged crime of murdering Niranjan Pal. 27. The Trial Court Records be sent back immediately. Appeal allowed.